"A Victory Of Sorts"

I love the smell of dropped felony charges in the morning. It smells like victory... of a sort.

Neil Lewis of the Times reports, sort of, on the latest in the Libby trial:

The Libby defense won a victory of sorts when Judge Reggie B. Walton agreed to exclude part of one of the five felony counts against Mr. Libby. But it remained unclear whether the change, which was not contested by the prosecutors, would matter in jury deliberations.

Which charge?  Not clear from this, but our panel of experts is betting on 33 (c), related to Judy Miller.  From the indictment:

33. It was further part of the corrupt endeavor that at the time defendant LIBBY made each of the above-described materially false and intentionally misleading statements and representations to the grand jury, LIBBY was aware that they were false, in that:

...

c. LIBBY did not advise Judith Miller, on or about July 12, 2003, that LIBBY had heard other reporters were saying that Wilson's wife worked for the CIA, nor did LIBBY advise her that LIBBY did not know whether this assertion was true;

Apparently Fitzgerald failed (forgot?!?) to elicit relevant testimony on this point.  Can someone give me a "Fitz!"?

NOTE:  I have changed "count" to "charge" a couple of times since there are still five counts.  I am not sure "charge" is right either, but it is clear that something was dropped.

FWIW, Neil Lewis is tough on Russert:

[The jurors] seemed to pay close attention as Mr. Wells, known for his cross-examination skills, and Mr. Russert, a successful public communicator, went at each other for a second consecutive day.

Mr. Wells focused on Mr. Russert’s behavior when he was first called by an F.B.I. agent and asked about a telephone conversation he had had with Mr. Libby on July 10 or 11, 2003.

In that call, the agent told Mr. Russert that Mr. Libby had said in an interview that he first learned of the identity of the C.I.A. operative, Valerie Wilson, from Mr. Russert in the July 2003 conversation.

Mr. Russert told the agent that Mr. Libby’s assertion was untrue, that the issue of Ms. Wilson never came up in that conversation.

Mr. Wells, using the technique that Mr. Russert is known for as moderator of “Meet the Press,” then put up on video screens throughout the courtroom Mr. Russert’s words in an affidavit he filed later. In an effort to avoid complying with a subpoena to testify about the same subject before a grand jury, Mr. Russert swore that he could not discuss the conversation because to do so would violate his deeply held journalistic principles.

“Did you disclose in the affidavit to the court that you had already disclosed the contents of your conversation with Mr. Libby” to the Federal Bureau of Investigation, Mr. Wells asked.

“As I’ve said, sir ... ,” Mr. Russert began.

“It’s a yes or no question,” Mr. Wells interrupted.

“I’d like to answer it to the best of my ability,” Mr. Russert replied.

“This is a very simple question. Either it’s in the affidavit or it’s not,” Mr. Wells said. “Did you disclose to the court that you had already communicated to the F.B.I. the fact that you had communicated with Mr. Libby?”

“No,” Mr. Russert said.

Good courtroom drama.

MORE:  I am actually OK with "a victory of sorts".  Here is the lead we expected:

In a stunning setback for the Libby defense, the judge upheld all but one of the counts in the indictment against him this evening...

AND the lead we wanted:

Glaring balefully at Special Counsel Fitzgerald, Libby Trial Judge Walton picked up a pair of scissors from his desk and carefully snipped out one paragraph from the original indictment.  "There", sneered the judge to the clearly abashed Fitzgerald, "Maybe you will have better luck proving some of these other ones."

Dreams die hard.

Comments

[dorf]

Threw out part of a count? When all the key media witnesses have faulty memories. Does anybody else think we have a weak judge here?

[peteinport]

FITZ! FORGITZ!

[RJM]

The prosecutor may not have contested the dropping of this count because he doesn't want the defense to use it as an excuse to get in evidence in their case in chief, such as what other reporters were saying about Plame etc.

[Patton]

Perhaps Fitz was just hearing about this count, as if for the first time.....

[MaidMarion]

What I heard in the courtroom was first "32c & 33d" but then there was a bunch of confusion and it sounded like they said "32d & 33c"... whatever the count was for which the prosecution provided no evidence.

32 & 33 were definite but which letter belonged where I'm not certain.

[maryrose]

One count down-and many more to come undone.

[Dan S]

One charge Fitzles.

Wonder how this plays with the jury. Are they informed of the change Monday? Or is this something that turns up in the summation and instructions?

My first thought is it sends a signal that the prosecution doesn't have the case it claimed to.

[michael scanlon]

Why are Libby's lawyers rethinking their plans about putting Libby on the stand? Is it because they think Fitzgerald has not sufficiently proven his case and there's simply no need to have Libby testify?
Or is their hesitation to have Libby testify on his own behalf a concession that things are not going well for their side? If I'm on the jury, I'm thinking the latter.

[David Pinto]

Those sound more like cup sizes than counts. :-)

[clarice]

Dan s--they'll never know. The jury didn't get the indctment itself and never will. They only get the jury instructions and exhibits.And matters realted to that count will just never be in the instructions when they received them.

I looked over MJW's summary of the indcitment earlier and I see some others really marginal--for example the claim that Libby pied when he told Cooper he didn't know if the rumors he was hearing were true..Even Cooper's half assed notes seem to track that claim.

[Dan S]

Thanks, Clarice,

I'm not sure I much like the system anymore. I think the jury should see the indictment. That would reign in some of this prosecutorial abuse of charging, and hold the prosecutor to their own line more effectively. They would be a lot more conservative about their indictments, and their touting them in the press, if they jury was going to go through them line by line. If nothing else, 100+ charges would really PO a jury unless they were all clearly justified.

I agree on the Cooper charges too. I don't think those have sufficient evidence in support to bear scrutiny.

The Russert ones are justified by the clear contradiction in he said/she said.

I think the Miller ones are marginally stronger than the Cooper ones, ignoring the believability of the witness's testimony. Miller has real problems there.

Russert has real problems too, but not at the moment with his precise testimony on point. Just those minor (cough cough) on the record memory loss problems.

I am firmly in the camp that an unbiased jury would already have reasonable doubt. None of those charges are slam dunks due to the impeachment of witnesses.

To claim there is no reasonable doubt requires holding Libby's memory to a far higher standard than the witnesses are being held since there are only suggested motives, none of which can easily be assumed to be true of a smart lawyer who came across as trying to cooperate in GJ testimony.

I am also firmly in the camp that this jury cannot by any stretch be assumed to be unbiased. Their own words deny that.

But I do think they will try to look at the case. I hope they recognise and can discount their own biases to some degree.

[Jane]

So Dan,

WOuld you as the defense rest, and not put on any witnesses?

[Phil]

My guess is Libby won't testify because he has no credibility. All this little poking at holes in the prosecution witnesses' testimony is important, because for one it demonstrates the fickleness of memory, which is key for the defense. he has made demonstrably false statements to the grand jury about matters of important, and they are going to put him on to say, "i forgot?" The witnesses against him have no motivation against him, and their inconsistencies are not directly about matters of substance. They haven't been contradicted. Russert is tough, because he was, in a sense, Libby's alibi. It's easy to explain an omission, but a confabulation is harder to explain away, even if there was no malicious intent.

The I forgot defense is the only thing available to Libby, but he's going to have a hard time contradicted those witnesses. It's hard enough when you only have one witness against you, but ridiculous when it's 6. He has to say he was so busy he forgot what was going on. To somebody who wasn't familiar with the goings on around the Plame affair, it might not seem so important, and so plausible that he might forget something of minor importance. It isn't to me, but that's why I'm not on the jury.

[ben]

The witnesses against him have no motivation against him, and their inconsistencies are not directly about matters of substance.

Hahhahahahahahh....the MSM has nothing against the Bush administration???? Come on Phil get real

[clarice]

Russert:It was like waiting for Santa Claus..

[cathyf]

So does this mean that the the jury would have never seen the indictment in the Martha Stewart case? For the first half of that trial, Stewart was under indictment on a count which made the novel! legal reasoning that claiming one's innocence was securities manipulation, whether or not one was innocent. (The logic being that saying she was innocent caused the stock price of Martha Stewart Omnimedia to change. The truly amazing part of the charge is that if you follow the logic through to its logical conclusion, the prosecutors committed exactly that "crime" when they brought the indictment. Martha Stewart Omnimedia has many competitors, some of which are owned by the prosecutors' retirement plans. Which means that by bringing the charges they "manipulated" the value of their retirement plans.)

But anyway, at least one juror said after the trial that one of the reasons that they convicted her was that she didn't defend herself at the trial. Putting aside the obvious 5th amendment problems with that (and the indication it gives of deficient jury instructions), is it true that the jury had no idea that in fact Stewart had been under indictment for the "crime" of defending herself up until mere days before they were deliberating?

Frickin amazing...

[clarice]

It may seem amazing but the indictment is simply a pleading, not evidence and the jury gets to see only evidence admitted by the court. Many counts may be dropped before the case goes to the jury. What good purpose would be served by having them see something that is mere allegation and which may be amended or dropped as the case proceeds?

[Alcibiades]

And on the limits of memories and he said/he said, there is one thing about the jury in Libby's favor.

Before they were approved, they were asked whether they themselves had experience with disputes in memories in their own lives. Most people, it seems to me, have plenty of sharp experience with this in their daily lives of the non-lying variety.

And Russert has been shown to be proven to forget very important facts in his own life. I think that will be instructive - if the jury is honest.

[cathyf]

Well, I would think that the characteristic of that particular dropped count would be material -- especially since, as the juror stated plublicly later, it clearly was material to the deliberations as they occured.

I suppose that, if Stewart had had decent lawyers then they could have argued that it was material. So we shouldn't just assume that the judge wouldn't have allowed the jury to be told about that particular charge, had her lawyers actually made an argument that it was material.

[maryrose]

Anyone seeing or hearing Russert on the day before and the day of the indictment of Libby has to have known how excited he was. Hardball was foaming at the mouth and reporting anywhere from 3 to 22 indictments. He was excited and delighted with the news. Waiting for Santa indeed. The jurors can definitely see through his obvious dial back of how thrilled they were and he was. His face and his voice betrayed him on these occasions.Jurors hopefully aren't stupid. Also if there is a teacher on that jury -that person will be hard to fool.

[cathyf]

Oh, and back on the Libby case, so would it be admissible for the defense to bring up that there was this charge, and it was dropped because Fitzgerald "forgot" completely to present any evidence on it? It would seem material to a memory defense... Heck, Fitzgerald expects you to believe that reporters have photographic memories of unimportant things months and years after they happened, without notes, but he can't even remember all the things he wrote down in the indictment?!?

[clarice]

I doubt they'll do it cathyf though we can have fune posting the original indictment charges and comparing the evidence adducd in support of them--it seems the prosecution (as it did in the presser) substantially overplayed what it had. (royal flush , I mean a pair of deuces)

[Other Tom]

Was the count dropped as a result of the judge ruling on a defense motion under Rule 29, or did the judge do it on his own (that's "sua sponte" to you, Martin)?

Has a Rule 29 motion been filed? If so, is it available anywhere?

[clarice]

I don't see a Rule 29 motion yet. As far as I can tell this was resolved in a bench conference.Wells probably noted at the prosecution's close that no evidence had gone in on that count and asked that it be dropped and the prosecution agreed.

[Assistant Village Idiot]

maryrose, I hope you're right, but only if the teacher is looking for possible evasion. Then, I agree, they're pretty darn good, at least with kids. But with adults they have some approval of? Their record is less good. I heard many teachers continue to support Bill Clinton, not because they agreed with him and thought the matter small, but because they thought he wasn't lying, except for a few slips. Agg.

You might also check out what speakers at Ed conferences are popular, and what their truth record is. My memory is weak on such things now, but a few I loved turned out to be charlatans.

[JM Hanes]

Maid Marion:

Thanks for the confirmation on Miller. I was surprised that this didn't show up on FDL or Maine Web, yesterday. As you recount the moment, however, it sounds like it could have been what Lance Dutson has taken to shorthanding as a "Fuzz Conference."

Per the Indictment-on-Line:

32(c):

LIBBY advised Judith Miller of the New York Times on or about July 12, 2003 that he had heard that other reporters were saying that Wilson's wife worked for the CIA but LIBBY did not know whether that assertion was true.

33(c):

LIBBY did not advise Judith Miller, on or about July 12, 2003, that LIBBY had heard other reporters were saying that Wilson's wife worked for the CIA, nor did LIBBY advise her that LIBBY did not know whether this assertion was true;

[Dan S]

Sorry, Jane, I got Thread Herded out, and I just broke loose and wandered back.

I'm not sure that resting the defense would be responsible (and IANAL also!). But I was indeed tempted to suggest just that. I really do not see that Fitz has made a case.

[JM Hanes]

As I wondered last night, and poster RJM suggests above, will Fitz' uncontested acceptance of dropping this charge will show up in a pleading to bar impeaching Miller or some such?

[Jane]

I'm not sure that resting the defense would be responsible (and IANAL also!). But I was indeed tempted to suggest just that. I really do not see that Fitz has made a case.

That indeed is the dilemma.

[hit and run]

Sorry, Jane, I got Thread Herded out

Ohhhhh, I deserve a lot of grief - but this one is simply not true! Thread Herder retired at around 7pm EST yesterday.

(right before something else happened, I can't remember what that was?)

[Other Tom]

My guess is that Wells will be lobbing in his Rule 29 motion sometime today, get what he can out of it (likely nada), then put on a defense case. I'm not sure what he's got, but he has nothing to lose by doing so. The issue is still whether Scooter takes the stand. Haven't a clue.

[clarice]

I beg you to go the Plame misconceptions thread where I posted the hilarious latest on this (couldn't quickly find this, the proper thread on which to post the news).

[TimS]

Will Cheney take the stand?

I could see the defense putting him on the stand, and then depending on the results, putting Libby on the stand.

Without Cheney, I don't see Libby on the stand unless Fitz really tears up the defense's other witnesses.

So again, in a different manner, will Cheney take the risk of rising to the occasion to defend "his number one?"

I think he will.

[Another Bob]

IANAL either, and have never served on a jury.

Am I to understand that the jurors only know of generic charges of "obstruction", "false statements" etc. and have no specifics?

[Carol Herman]

FROM CAROL HERMAN

David PInto comments: "Those sound more like cup sizes than counts. :-)"

Then, is the judge saying he wants Clarice to show up on Monday, bra-less? Can he do that?

[Carol Herman]

FROM CAROL HERMAN

Going back to something I once read on Beldar's blog, it seems lawyers in the court room know, ahead of time, when their case "fizzles." They're not allowed facial expressions. Nor can they pick up their bags, and leave.

It seems to me that Judge Walton is "snipping at Fitz's case S-L-O-W-LY. If he's uncircumcized it is a major "snip" none-the-less. Painful.

And, with more to come?

One snip here. Another snip there. And, the jurors will go home, sans having to reflect together on anything much.

It seems the judge wants the jurors to "question" so he's creating a court room record. And, then? When he dismisses, ahead? They don't go home, mad. Just glad to get out of there?

"With a snip, snip, here. And, a snip, snip, there, we may be able to tell if the counts (32, something. 33, something), which might deal with Judith Miller; would just mean that Jill Abramson won't be in the courtroom on Monday?

Jill Ambramson, besides being a witness to impeach Miller, was ALSO PART OF THE "DC" in-crowd. The NY Times, plucked her from DC, to NYC. (It's not as if she wouldn't know what you meant by a DC circle-jerk.)

[Rick Ballard]

Another Bob,

Here are Fitz's proposed verdict forms and Wells' proposed verdict forms. The form proposed by Wells explains what the jury is to decide.

If you wish to follow the filings Cboldt's site is excellent. SunnyDay also has a good site but I don't have it bookmarked.

[JohnH]

I have hope that the jury will face the facts that have been put before them and not just use their previous understanding of what the Wilson-Plame affair is "about."

I find with people who loudly trumpet the "Bush lied" canard that if you call them on it and say let's get down to particulars and see exactly what he lied about, then these people begin to back off and re-define what they mean by "lie." So the jury is going to have specific testimony in front of them that Libby was most concerned with rebutting Wilson's allegations, that the press was not reporting this fairly, and that Libby's lies, if they are lies, don't make any sense.

[Another Bob]

Mr. Ballard:

Thanks, I've already been poking around cboltd's place a little.

My question was more procedural. Are the verdict forms the first indication the jurors get of the actual crimes the defendant was charged with?

[hit and run]

CAROL!!!!! LOLOLOLOLOLOL

Can he do that?

You deliver some of the best one-liners.

[michael scanlon]

Libby defenders remind me of that World War I song about two parents watching their soldier son, Jim, marching up Broadway with his Army regiment, “Look,” the overly proud mother says to the father, “All the soldiers are totally out of step except our son, Jimmy!”

So it is in this case. The parade of six prosecution witnesses all seem to be out of step with the Scooter. Can somebody please tell me their motivation for lying?

If I’m on the jury, I don’t get it.

[Dan S]

Aside from perhaps Russert, who has some issues with consistency in his on-the-record statement (verbal and written), none of the witnesses are accused of lying.

All have shown themselves to have far less than perfect memories.

As had Libby.

Why is his memory failure a crime?

Or can you PROVE it's a lie, not a memory failure? That's the issue.

[James]

Bottom line is the defense has not helped Libby at all.

[michael scanlon]

For the jury this is going to come down to a straight forward, easy-to-grasp case: Do they believe Libby or do they believe Russert? All the rest is commentary. At this point the odds are that reasonable people are leaning towards Russert. It may change, but Libby will have to take the stand himself to bring about that change.

[Jane]

Are the verdict forms the first indication the jurors get of the actual crimes the defendant was charged with?

I don't know if this was answered before, but ususally, when the jury is empaneled the Judge tells them what the case is about, which should also indicate the crimes charged. And in the opening if the prosecutor doesn't lay out what he is there for, he can get directed out. And I've seen that one happen (arrogant lawyer so busy trying to suck in the jury neglects to lay out the elements of the case) and it is very ugly.

[ben]

o they believe Libby or do they believe Russert? All the rest is commentary. At this point the odds are that reasonable people are leaning towards Russert.

Who are these reasonable people...my take is reasonable people would never believe a MSM type like Russert, a hard core liberal who rigs his shows in favor of Democrats and against the Administration. I wish someone would do a legitimate poll and ask if the general public thinks Dan Rather, Tom Brokaw, Katie Couric, Tim Russert et al are fair and objective and balanced and non-partisan...if the jury is representative of what the general public thinks I dont see Russert as a credible witness at all, he would be viewed with extreme suspicion

[Sara (Squiggler)]

At this point the odds are that reasonable people are leaning towards Russert. It may change, but Libby will have to take the stand himself to bring about that change.

I don't agree Michael. The jury has heard over 7 hours of Libby being grilled at the GJ. According to courtroom listeners, Libby was making every effort to be cooperative and answer the questions put to him to the best of his ability.

Now, contrast that with the weaseling that Russert was doing on the stand, the affidavit mess, and his extremely poor recall of some very key events.

I think Libby 1, Russert 0

[ben]

Rigth Sara, the only people that believe Russert are the ones that believe Dan Rather's "fake but accurate" Bush National Guard story.

[ben]

Actually the Russert-Rather analogy is quite fitting...Rather huffed and puffed and was incensed that he actually needed corroboration for his blockbuster story...how dare anyone challenge him...Russert is on the same track..I am a respected journalist with a big time Sunday show why should my lack of memory or outright lie interfere with the business at hand which is to skewer Libby...let's not let the facts hinder the objective...

[JM Hanes]

Jane:

On verdict forms & openings, thanks. I've been wondering that myself.

[Corner Stone]

C'mon. Any one who's been paying attention and still thinks Libby has one shred of credibility? Reality left them behind a long time ago. Six different witnesses have blasted his BS right out of the damn water. Is it reasonable to assume they all have an agenda? He's done.

[Jim]

Ben, MTP is rigged in favor of Democrats? Are you serious? MTP is where Dick Cheney goes when he wants to get his view out. He loves Timmeh. It's been documented that more Repubs and conservatives are invited than Dems and liberals, and often when MTP wants to be "balanced" it has conservative pundits, who just spew the right's talking points, with reporters who, even if they are liberal, necessarily take a more muted approach.

With all due respect Dan, Libby's problem was a mere memory problem? Have an interest in some oceanfront property in Arizona? The evidence has shown clearly that Wilson, and his wife, came up repeatedly in the OVP prior to Novak's column coming out (and in fact before Wilson's Op-Ed piece was published), and yet we're to believe that Scooter forgot then "relearned" Plame's identity from Russert, who has testified without equivocation that he learned it from Novak's column and didn't say anything to Libby. The only thing that might keep Libby out of jail, other than a potential pardon, is the high standard of beyond a reasonable doubt, and I really don't think a reasonable person could conclude that Scooter would have forgotten Valerie Plame after all that occurred prior to Novak's column.